Citation Nr: 1515058
Decision Date: 04/08/15 Archive Date: 04/21/15
DOCKET NO. 09-47 531 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas
THE ISSUE
Entitlement to an initial compensable rating for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and anxiety disorder.
REPRESENTATION
Appellant represented by: Margaret Matthews, Agent
ATTORNEY FOR THE BOARD
Cheryl E. Handy, Counsel
INTRODUCTION
The Veteran served on active duty from October 2003 to April 2008, including service in Iraq, for which he earned a Combat Infantryman Badge and a Bronze Star.
This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in August 2008 of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which granted service connection for anxiety disorder and assigned a noncompensable (0 percent) disability rating.
The Veteran has contested the characterization of his acquired psychiatric disorder as anxiety disorder rather than PTSD, the condition for which service connection was sought. Both conditions have been diagnosed as reflected by the Board's characterization of the issue.
FINDING OF FACT
From the date of service connection, the Veteran has manifested PTSD, which is characterized by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, and chronic sleep impairment.
CONCLUSION OF LAW
Throughout the rating period on appeal, the criteria for an initial disability rating of 30 percent, and no higher, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. § 4.1, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2014).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA)
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).
In June 2008, the RO sent the Veteran a letter, prior to adjudication of his claims, providing notice, which satisfied the requirements of the VCAA. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). No additional notice is required.
Next, VA has a duty to assist the Veteran in the development of claims. This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159.
All pertinent, identified medical records have been obtained and considered. The Veteran was afforded VA examinations in June 2008 and May 2013. The Veteran's agent asserted that the June 2008 examination was inadequate in several respects, including the fact that the provider's primary focus in practice was not combat-related PTSD, that the Veteran could not have been expected to confide in a practitioner unknown to him in a brief encounter, and that the outcome was a diagnosis of anxiety rather than PTSD as the Veteran claimed. Partially as a result of these concerns, the Veteran was provided the May 2013 examination which also yielded a diagnosis of anxiety rather than PTSD. The Veteran's agent also felt that this examination was inadequate, although no challenge has been made regarding the examination report of the history provided or the symptoms as described by the Veteran. Inasmuch as the Board is ultimately charged with assessing the adequacy of the rating in relation to the history and symptoms, the asserted inadequacies with respect to the second examination are not sufficient to justify further delay in adjudicating this claim in order to secure yet another examination and opinion.
As VA satisfied its duties to notify and assist the Veteran, no further notice or assistance is required. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §3.159.
Assigning Disability Ratings
A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155.
Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7.
The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In this case, the Veteran's PTSD symptoms have been largely consistent throughout the appeals period and a staged rating is not indicated.
The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities:
A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication, is given a noncompensable (0 percent) rating.
Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication, is assigned a 10 percent rating.
Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events), warrants a 30 percent rating.
Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, a 50 percent rating. 38 C.F.R. § 4.130.
Also of relevance, the Global Assessment of Functioning (GAF) is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). (The Board recognizes that the Veterans Benefits Administration is now required to apply concepts and principles set forth in DSM-V; however, the Secretary of VA has specifically indicated that DSM-IV is still to be applied by the Board for claims pending before it. 79 Fed. Reg. 45094 (Aug. 4, 2014)). A GAF score of 71 to 80 signifies only transient and expectable symptoms and no more than slight impairment in social, occupational, or school functioning.
A GAF score of 61 to 70 indicates some mild symptoms or some difficulty in social, occupational, or school functioning, but generally, functions pretty well with some meaningful interpersonal relationships. A GAF score of 51-60 involves moderate symptoms, such as flat affect and circumstantial speech, occasional panic attacks, or moderate difficulty in social or occupational functioning (e.g., few friends or conflicts with peers or co-workers). A GAF score from 41 to 50 is defined as serious symptoms or any serious impairment in social, occupational, or school functioning. Included in this definition is that a person is unable to keep a job. A GAF score of 31-40 is defined as exhibiting some impairment in reality testing or communication (speech is at times illogical, obscure, or irrelevant), or any major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (a depressed man that avoids friends, neglects family, and is unable to work; a child that frequently beats up younger children, is defiant at home, and is failing at school). The Board is cognizant that a GAF score is not determinative by itself.
Facts and Analysis
The record clearly establishes the Veteran's service in Iraq and the medals that he earned for his service. Service connection was granted based on that record, although the mental health disability was listed as anxiety disorder rather than the claimed PTSD. The Veteran has taken issue with the characterization or diagnosis assigned by the VA examiners, implying that a diagnosis of anxiety disorder diminishes the nature of the trauma he experienced in service. The record shows that the diagnosis assigned in service and by treating VA providers since service separation was one of PTSD. The VA examiners have stated that the criteria for a diagnosis of PTSD have not been met, but have not explained which elements are lacking. Inasmuch as the central focus of both VA and the Veteran is the symptomatology and the resulting disability from that symptomatology, which is unchanged regardless of whether the treating providers' diagnosis of PTSD or the VA examiners' diagnosis of anxiety disorder with PTSD features is used, the Board will hereinafter describe the disability as PTSD. The RO is instructed to amend the assigned Diagnostic Code accordingly.
The Veteran was seen for complaints related to his PTSD a short time prior to his service separation, in March 2008. At that time he reported frequent nightmares, increased irritability, hypervigilance and hyperstartle response, disturbing memories, loss of interest in otherwise pleasurable activities, a need to be left alone, and severe chronic sleep impairment. The provider diagnosed PTSD.
At a VA examination in July 2008, the Veteran stated that he had not worked in the 3 months since service separation and that he was starting school at Texas A&M University shortly. He reported problems sleeping, irritability, anxiety, feeling on edge in crowds, hypervigilance and hyperstartle response, nightmares and emotional distancing. However, he said that his symptoms had not posed any significant difficulties and that he was able to function well. The examiner diagnosed Anxiety Disorder, NOS, and noted that the Veteran's symptoms did not seem to be severe enough to interfere with his social and occupational functioning. A GAF score of 75 was assigned.
At a VA examination in May 2013, the examiner noted a diagnosis of mild Anxiety Disorder, NOS, with PTSD features, not severe enough to interfere with his occupational or social functioning. The Veteran reported having nightmares several times per week with physiological responses, hyperarousal, occasional difficulty dealing with his family, irritability, and continued severe chronic sleep impairment. The examiner noted that the Veteran had completed Bachelor's degree in sociology with a 3.0 grade point average and that he denied having any problems with his peers, professors, supervisors, or coworkers. The GAF was again 75.
In statements submitted by the Veteran and his agent, he has reported limited socialization, difficulty relating to people around him, leaving a previous career because of feelings of discomfort around his coworkers, and choosing to vent his anger at the gym rather than around other people. His employer had made allowances for his PTSD symptoms by allowing him to work in a back room where he did not need to interact with the public, in part because of relentless anxiety and panic attacks.
A review of the record shows that the Veteran has been able to adapt well to civilian life and to function well in society, completing his education and finding steady gainful employment. By his own description, he has good relationships with family and friends and is able to cope with most of the symptoms of his PTSD in a productive manner. Nonetheless, the record does show some chronic PTSD symptoms which have an impact on his social and occupational functioning. As a result, a compensable disability rating is warranted.
After considering all of the evidence set forth above, the Board finds that the Veteran's disability picture most closely approximates one of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Specifically, the Board notes that the Veteran has emotional numbing and hypervigilance with hyperstartle response which impact his social interactions. He has had difficulty with irritability and anger, which he releases through intense physical exercise. Occupationally, he has changed employment several times, at least in part based on difficulty relating to co-workers, and his current employer makes allowances for his PTSD symptoms by not requiring him to interact with the public. His symptoms of depression, anxiety, panic attacks, suspiciousness, and severe chronic sleep impairment are closely related to his impaired social and occupational functioning. As such, a 30 percent disability rating is warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411.
A disability rating in excess of 30 percent for PTSD is not warranted. Specifically, the Veteran has not demonstrated reduced reliability and productivity as a result of his PTSD. Instead, he has managed to obtain a Bachelor's degree and hold down a steady job. He reports having a few close friends, having a good relationship with his family, and having found socially acceptable outlets for his PTSD symptoms, to include seeking accommodations at work and releasing his anger through exercise. He has interests and hobbies, ranging from outdoor pursuits to reading. Hi GAF scores of 75, shown on both examinations, reflect no more than slight interference with functioning. In sum, the Veteran's commendable ability to adapt to life outside of military service demonstrates that his PTSD does not merit a disability rating higher than 30 percent. 38 C.F.R. § 4.130, Diagnostic Code 9411.
Extraschedular Rating
Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service.
The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria.
If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008).
Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology as they relate to his PTSD, where the Veteran remains gainfully employed and capable of engaging in the activities of daily living, and maintains strong social ties with family and friends. The rating criteria provide for higher ratings in the future should more severe symptoms develop. As such, the assigned schedular rating is adequate and referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1).
ORDER
Entitlement to an initial disability rating of 30 percent, but no higher, for PTSD is granted.
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Eric S. Leboff
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs